No sooner had President Obama signed comprehensive health care reform than the attorneys general of 14 states scurried to the federal courts to challenge the law. Their claims range from far-fetched to arguable and look mostly like political posturing for the fall elections or a “Hail Mary” pass by disgruntled conservatives who cannot accept what Congress and the president have done.Is the Health Care Law Unconstitutional?

Room for DebateHow likely are the courts to strike down any part of the health legislation?

They seem unlikely to succeed because the law was carefully drafted to withstand just this kind of challenge.

There are two separate suits by the attorneys general. The main one, led by Bill McCollum, a Florida Republican, has been joined by 12 other attorneys general, all but one Republicans. Many if not most are either running for higher office or seeking re-election. A separate suit by Virginia’s Republican attorney general is based on that state’s attempt (sure to be ineffective) to nullify the federal law by enacting a state law declaring that Virginians need not obey it.

A central contention of both suits is that Congress has no power under the Constitution to compel individuals to buy health insurance or pay a penalty. Congress has never before compelled people to buy anything from a private company, so there is no precisely apt Supreme Court precedent. Still, two provisions in the Constitution give Congress broad powers to regulate economic activity — the power to impose taxes for the general welfare and the power to regulate interstate commerce.

The new law has been framed to fall within both of those provisions. The penalties for not buying insurance have been structured as a tax, to be collected by the Internal Revenue Service. And the law’s text includes a series of Congressional findings: that health insurance and health care comprise a significant part of the economy, that most policies are sold and claims paid through interstate commerce, and that the mandate is essential to achieving the goals of creating effective health insurance markets and achieving near-universal coverage.

Such findings don’t make the new law bullet-proof, but they help to insulate it from attack. It seems a long shot that the Supreme Court would invalidate the mandate, if the cases ever reach that level.

A second contention, emphasized by the 13 state attorneys general, is that the new law amounts to an unprecedented encroachment on the sovereignty of the states. It will require them to greatly expand their Medicaid programs, imposing substantial costs, and add administrative burdens in setting up new insurance exchanges that will offer an array of private policies.

That seems a stretch. No state is required to set up an exchange. If states fail to do so, the federal government will take over. Nor is any state required to participate in Medicaid, a joint federal-state program in which Washington pays half or more of the costs.

It is true, as the suit contends, that it may not be practical for states to drop out of a Medicaid program that serves many of their poorest residents. But it is well established that Congress can attach conditions to the money it supplies, and Congress has long imposed Medicaid requirements that states must meet.

The attorneys general are doing a disservice to their constituents by opposing Medicaid expansion and a mandate that everyone buy insurance, with subsidies for low- and middle-income people. The mandates are needed to push enough healthy young people into insurance pools to help subsidize the cost of covering sicker people and make it feasible for insurers to cover people with pre-existing conditions. Alternative approaches to entice people to obtain coverage would likely be less successful.

Related Discussions

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